SSRN Id4188196

Copyright 2022 by Marisa Shearer Vol.
117
Northwestern University Law Review
BANNING BOOKS OR BANNING BIPOC?
Marisa Shearer
ABSTRACT—Following the murder of George Floyd in May 2020, social

justice movements renewed calls for the country to confront the pervasive
reality of systemic racism in the United States. In response to these
publicized social justice movements, however, calls for book bans relating
to critical race theory began rising at an unprecedented rate. Although book
ban censorship is not novel, the recent shift in focus to remove critical race
theory from public school libraries marks a new era of content-based
censorship.
This Essay examines why current book bans targeting critical race
theory are content-based restrictions that necessarily violate the First
Amendment. It explores the social and legal history of book bans in the
United States and discusses recent trends in book ban censorship. This Essay
then identifies First Amendment “areas of nonprotection” through which
book ban proponents seek to exclude race-related content and analyzes why
all are pretextual fallacies that undermine freedom of speech principles and
mandate diversity in the judiciary.
AUTHOR—Associate, Wheeler Trigg O’Donnell LLP. J.D., University of

Denver Sturm College of Law, 2021; B.S. Exercise & Wellness, Brigham
Young University, 2014. I would like to thank Professor Nancy Leong for
her insight and guidance during the drafting of this Essay. I would also like
to thank my husband for his support and inspiration.
24
Electronic copy available at: https://ssrn.com/abstract=4188196

NORTHWESTERN UNIVERSITY LAW REVIEW ONLINE
INTRODUCTION ............................................................................................................... 25
I. BACKGROUND: BOOK BANNING AND THE FIRST AMENDMENT ................................ 26
A. Book Banning and Contemporary Attempts to Ban Books in the United
States .............................................................................................................. 27
B. The First Amendment and the Freedom of Speech ........................................ 30
C. Book Banning and the First Amendment Applied—Board of Education
v. Pico ............................................................................................................ 32
II. BOOK BANS TARGETING CRITICAL RACE THEORY VIOLATE THE FIRST
AMENDMENT .......................................................................................................... 35
A. The “Critical Race Theory Incites Violence” Fallacy .................................. 36
B. The “Critical Race Theory is Defamatory” Fallacy ..................................... 38
C. The “Critical Race Theory is Obscene” Fallacy .......................................... 40
III. THE FIRST AMENDMENT AND A MORE DIVERSE JUDICIARY .................................... 42
CONCLUSION ................................................................................................................... 45
INTRODUCTION
“If there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.”1
A bill in Iowa seeks to criminalize the dissemination of “material [a]
person knows or reasonably should know, is obscene or harmful to minors”
in K–12 public schools or libraries with two years of jail time.2 A Texas
Representative has distributed a list of 850 books statewide that he believes
could “make students feel discomfort, guilt, anguish, or any other form of
psychological distress because of their race or sex.”3 And parents nationwide
are submitting formal paperwork to school administrators challenging the
appropriateness of books dealing with race, social justice, and
discrimination, arguing that these books promote terrorism.4 These examples
form a cross section of the contemporary book banning movement rampant
in the United States.
1
Texas v. Johnson, 491 U.S. 397, 414 (1989).
2
Valerie Strauss, This Wave of Book Bans is Different from Earlier Ones, WASH. POST (Feb. 10,
2022, 8:30 AM), https://www.washingtonpost.com/education/2022/02/10/book-bans-maus-bluest-eye/
[https://perma.cc/TJM3-U2DB].
3
Bill Chappell, A Texas Lawmaker is Targeting 850 Books that He Says Could Make Students Feel
Uneasy, NPR (Oct. 28, 2021, 1:00 PM), https://www.npr.org/2021/10/28/1050013664/texas-lawmaker-
matt-krause-launches-inquiry-into-850-books [https://perma.cc/6JAN-JPPV].
4
See, e.g., Mike Hixenbaugh, Here Are 50 Books Texas Parents Want Banned from School Libraries,
NBC NEWS (Feb. 2, 2022, 9:23 AM), https://www.nbcnews.com/news/us-news/texas-library-books-
banned-schools-rcna12986 [https://perma.cc/QYK6-DC7B] (describing Texas parents as part of the
national trend).
25

117:24 (2022) Banning Books or Banning BIPOC?
Although book bans are not historically novel, current book ban efforts
led by conservative groups primarily target works that deal with race, racial
justice, and the critical race movement and that are often written by minority
authors. These attempts to silence minority voices, however, use pretextual
arguments and an incorrect application of the First Amendment. This Essay
discusses the increasing prevalence of book bans aimed at critical race
theory, analyzes these bans under the current First Amendment framework,
and identifies an essential response to this issue.
This Essay proceeds in four parts. Part I introduces book bans and their
social and legal history in the United States. It then discusses general First
Amendment principles that limit restrictions on the freedom of speech and
summarizes the current efforts to ban books related to critical race theory
from public school libraries. Next, Part II introduces the fallacious arguments
that critical race theory is unprotected speech under the First Amendment.
Part II then identifies the pretext underlying each argument and,
consequently, identifies why each argument fails to justify the book bans
within the bounds of the First Amendment. Finally, Part III asserts that the
recent push for book bans demonstrates the overinclusive and underinclusive
nature of First Amendment jurisprudence when applied to majority and
minority groups respectively. Part III concludes by emphasizing the need for
a judiciary diverse in thought, experience, and color to guarantee First
Amendment protection for critical race theory and racial minorities in the
United States.
I. BACKGROUND: BOOK BANNING AND THE FIRST AMENDMENT

Book banning in American culture predates the formation of the United
States itself—Thomas Morton’s New English Canaan, published in 1637, is
the first known book to be “explicitly banned in what is now the United
States.”5 Historically, book banning, or the removal of books based on
objections from individuals or groups,6 has been used to suppress materials,
ideas, and contents that conflict with a person or group’s beliefs.7 Although
proponents of book bans may, in theory, target public libraries, they
generally focus their attention on schools.
Calls for book bans in U.S. schools, universities, and libraries have
grown at an unprecedented rate in recent years. According to the American
5
Matthew Taub, America’s First Banned Book Really Ticked Off the Plymouth Puritans, ATLAS
OBSCURA (Nov. 1, 2019), https://www.atlasobscura.com/articles/americas-first-banned-book [https://
perma.cc/SY35-8SD3] (describing why the Puritans banned Morton’s book in Plymouth colony).
6
See Banned Book FAQ, AM. LIBR. ASS’N, https://www.ala.org/advocacy/bbooks/banned-books-qa
[https://perma.cc/NJH3-4KET].
7
Id.
26

Library Association (ALA), 330 book challenges were reported to its Office
for Intellectual Freedom between September and December of 2021.8 Book
bans and challenges during this three-month period are nearly two-times the
156 challenges reported during 2020 and are close to the 377 yearly total in
2019.9 Members of the ALA in 2021 reported that the organization was
receiving book bans and challenges daily—a frequency they had never seen
before.10 This sudden increase raises an obvious but essential question: what
is driving this recent rise in book ban demands?
This Part introduces book banning, explains the First Amendment
principles that apply to content-based speech restrictions, and examines the
seminal book banning case that guides book banning jurisprudence.
A. Book Banning and Contemporary Attempts to Ban Books in the United

States
School-based book bans seek to protect children from inappropriate,
offensive, or unsuitable content and are typically premised on the idea that
children are a particularly vulnerable group.11 However, these broad terms
often encompass a myriad of vague book ban rationales, leading to pushes
for bans against books like Where the Wild Things Are for being too dark,12
or the Harry Potter series for encouraging witchcraft and heresy.13
8
See Surge in Book Challenges Press Kit, AM. LIBR. ASS’N, https://www.ala.org/news/mediapress
center/presskits/surge-book-challenges-press-kit [https://perma.cc/D9MR-RYL3]; Zack Beauchamp,
Why Book Banning Is Back, VOX (Feb. 10, 2022, 7:00 AM), https://www.vox.com/policy-and-politics
/22914767/book-banning-crt-school-boards-republicans [https://perma.cc/4GEY-AT9G]. The ALA
contextualizes its report of total book challenges by noting that between 82% and 97% of book challenges
remain unreported. See Betsy Gomez, ALA Unveils Top 10 Most Challenged Books of 2020, BANNED
BOOKS WK. (Apr. 5, 2021), https://bannedbooksweek.org/ala-unveils-top-10-most-challenged-books-of-
2020/ [https://perma.cc/B5K8-DT4Y].
9
2020 Banned & Challenged Books List, AM. LIBR. ASS’N: INTELL. FREEDOM BLOG (Aug. 2, 2021),
https://www.oif.ala.org/oif/2020-banned-challenged-books-list/ [https://perma.cc/AR2U-9YRS]; AM.
LIBR. ASS’N, FIELD REPORT 2019: BANNED & CHALLENGED BOOKS 20 (2019).
10
Olivia B. Waxman, ‘We’re Preparing for a Long Battle.’ Librarians Grapple with Conservatives’
Latest Efforts to Ban Books, TIME (Nov. 16, 2021, 12:13 PM), https://time.com/6117685/book-bans-
school-libraries/ [https://perma.cc/BUJ4-BZWZ].
11
See Hixenbaugh, supra note 4 (describing some parents’ wish to ban certain books in order to
“protect my kids’ hearts and minds” and to prevent children from “question[ing] their sexual orientation
when they don’t even comprehend what that means,” among other reasons).
12
See Alissa Wilkinson, Many Banned Books Were Made into Movies. Where the Wild Things Are
May Be the Greatest, VOX (Sept. 24, 2018, 3:48 PM), https://www.vox.com/culture/2017/9/30/16363296
/banned-books-week-where-wild-things-are-sendak [https://perma.cc/C7RV-W4VT].
13
See Antonia Noori Farzan, A Catholic School Removed Harry Potter Books from its Library,
Warning that Readers ‘Risk Conjuring Evil Spirits’, WASH. POST (Sept. 3, 2019), https://www.
washingtonpost.com/nation/2019/09/03/harry-potter-books-catholic-school-ban-conjuring-evil-spirits/
[https://perma.cc/HC29-T595].
27

Consequently, what is considered inappropriate, offensive, or

unsuitable reflects the social anxieties that exist when bans are proposed.14
For example, in the midst of the “Red Scare” of the 1950s and 60s, an Indiana
Textbook Commission member sought to remove Robin Hood from the
state’s school textbooks, arguing that Robin Hood’s robbing the rich and
giving to the poor enforced communist ideologies.15 Similarly, in 1989,
members of a California logging town fought to ban Dr. Seuss’s The Lorax
from schools because they perceived the book as environmental activism that
taught antilogging propaganda.16
The contemporary focus of book bans on race-related content, critical
race theory, and beyond departs from traditional bases for book ban
censorship. Prior to 1999, most book bans submitted to the ALA sought to
censor “sexual content” and “obscene language.”17 However, 2020 marked a
precipitous increase in requests for book bans relating to race, racial justice,
and more generally, stories of “Black, Indigenous, or people of color,”18 or
“BIPOC.”19 This revival of book bans corresponds with the increased public
awareness of social justice movements and critical race theory following the
murder of George Floyd in May 2020.20
The critical race theory movement “is a collection of activists and
scholars engaged in studying and transforming the relationship among race,
racism, and power.”21 Considered as “an approach to grappling with [the]
history of [w]hite supremacy” in the United States, it rejects detachment
from the past and recognizes that current laws and systems are products of
that history.22 Unlike the incremental approach taken by traditional civil
rights activists, “critical race theory questions the very foundations of the
14
Waxman, supra note 10.
15
Indiana Textbook Commission Member Charges that Robin Hood Is Communist, HISTORY (Nov.
15, 2021), https://www.history.com/this-day-in-history/indiana-textbook-commission-member-charges-
that-robin-hood-is-communistic [https://perma.cc/98KZ-WH7Y].
16
Jill Lepore, The Lessons of “The Lorax”, NEW YORKER (Nov. 28, 2021), https://www.newyorker
.com/magazine/2021/12/06/the-lessons-of-the-lorax [https://perma.cc/UBK6-Q83W].
17
Beauchamp, supra note 8.
18
Gomez, supra note 8.
19
Standing for “[B]lack, Indigenous, and people of color,” the term BIPOC expands upon the term
“people of color,” or “POC,” “to account for the erasure of [B]lack people with darker skin and Native
American people.” Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. TIMES (June 17, 2020),
https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/8AGE-QE3T].
20
See Strauss, supra note 2.
21
RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION 3 (3d ed.
2017).
22
Faith Karimi, What Critical Race Theory Is -- and Isn’t, CNN (May 10, 2021, 3:45 PM),
https://www.cnn.com/2020/10/01/us/critical-race-theory-explainer-trnd/index.html.[https://perma.cc/
BWR9-D9MU].
28

liberal order, including equality theory, legal reasoning, Enlightenment

rationalism, and neutral principles of constitutional law.”23
As Americans continued to confront the pervasive reality of systemic
racism in the United States in the months following George Floyd’s murder,
the Trump Administration unveiled the “1776 Commission” and prohibited
the use of critical race theory in federal offices in September 2020.24 Through
the 1776 Commission, the Trump Administration sought to “promote
patriotic education” by eliminating critical race theory from governmental,
workplace, and classroom settings.25 The Commission released its report on
January 18, 2021—both the penultimate day of the Trump administration
and Martin Luther King Jr. Day.26 In its report, the 1776 Commission
advocated for U.S. history classroom discussions that focused on the
Constitution and the Declaration of Independence rather than “‘fashionable
ideologies’ like ‘claims of systemic racism’ that threaten national unity.”27
Although terminated by President Joe Biden in an executive order two days
after its release,28 the 1776 Commission nonetheless precipitated the
movement to ban race-related material from schools and erase critical race
theory from public discourse altogether.29
Since January 2021, state legislatures have introduced over 120 bills
that seek to ban critical race theory from K–12 schools, with twelve bills
passing in ten states and over eighty remaining active across the country.30
For example, legislators in Arizona introduced a bill under which teachers
could be fined up to $5,000 for making students feel race-related guilt.31 In
Florida, a lawmaker has “introduced legislation that would allow parents to
scrutinize video recordings of their children’s classrooms for signs of
‘critical race theory,’” what the bill seems to categorize as “abuse or
neglect.”32 And under a bill introduced in Iowa, “anyone connected to a K–
12 public school or library” who disseminates “material the person knows or
23
DELGADO & STEFANCIC, supra note 21, at 3.
24
Olivia B. Waxman, ‘Critical Race Theory Is Simply the Latest Bogeyman.’ Inside the Fight over
What Kids Learn About America’s History, TIME (July 16, 2021, 7:42 PM), https://time.com/
6075193/critical-race-theory-debate/ [https://perma.cc/92AR-VDFA].
25
Id.
26
Id.
27
Id.
28
Id.
29
See id. (noting the termination of the 1776 Commission only “spurred conservatives on”).
30
Beauchamp, supra note 8.
31
Waxman, supra note 24; S. 1532, 55th Leg., 1st Reg. Sess. (Ariz. 2021).
32
Beauchamp, supra note 8; H.R. 1055, 2022 Leg. (Fla. 2022).
29

reasonably should know, is obscene or harmful to minors” may face fines

and two years of jail time.33
These attempts to remove critical race theory and race-related education
from schools are not limited to legislative enactments. As of February 2022,
forty-two states have taken some form of action to prohibit critical race
theory or restrict how educators may discuss racism and sexism in
classrooms.34 In Texas, Representative Matt Krause compiled a list of 850
books that he believed “might make students feel discomfort, guilt, anguish,
or any other form of psychological distress because of their race or sex.”35
As the chair of the Texas House’s General Investigating Committee,
Representative Krause requested that schools statewide report which books
they possessed, the money spent on each, and the physical location of the
books within the schools.36 Notably, upon reviewing the first 100 books on
Krause’s list, a local news source determined that ninety-seven “were written
by ethnic minorities, women[,] or LGBTQ authors.”37 As evidenced by this
list and the current slew of legislatures seeking to remove race-related
content from schools, these recent book bans flout the principles of the First
Amendment by seeking to silence the underprivileged and the oppressed.38
B. The First Amendment and the Freedom of Speech

The First Amendment provides that “Congress shall make no law . . .
abridging the freedom of speech.”39 Although simple on its face, this text has
led to decades of scholarly debate. Nowhere in its text does the First
Amendment define “speech,” “the freedom of speech,” or any relationship
that may exist between the two premises.40 Consequently, much of First
33
Strauss, supra note 2; S. 2198, 89th Gen. Assemb. (Iowa 2022). Although the Iowa bill primarily
targets “books written about LGBTQ characters and characters of color,” the overbreadth of the bill’s
language “could greatly expand the list of targeted materials for civil lawsuits” and thereby encompass
critical race theory. Nikoel Hytrek, GOP Legislators Target Librarians for Prosecution, Fines Under
New Bill, IOWA STARTING LINE (Feb. 4, 2022, 11:12 AM), https://iowastartingline.com/2022/02/04/gop-
legislators-target-librarians-for-prosecution-fines-under-new-bill/ [https://perma.cc/GKV2-DFCL].
34
Sarah Schwartz, Map: Where Critical Race Theory Is Under Attack, EDUC. WK. (Apr. 14, 2022),
https://www.edweek.org/policy-politics/map-where-critical-race-theory-is-under-attack/2021/06
[https://perma.cc/LB76-JGGU].
35
Chappell, supra note 3.
36
Id.
37
Anthony Zurcher, Why Are Certain School Books Being Banned in US?, BBC (Feb. 7, 2022),
https://www.bbc.com/news/world-us-canada-60261660 [https://perma.cc/HP4U-SKUR].
38
Id.
39
U.S. CONST. amend. I.
40
Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. REV. 318, 324–25 (2018).
30

Amendment scholarship wrestles with the definition of each concept and

with the scope of the speech-related right granted by the Constitution.41
Due to the vagueness and potential breadth of the freedom of speech,
courts and scholars also grapple with when speech may be limited and to
what degree. Traditionally, scholarship and jurisprudence have focused on
the rationales underlying the freedom of speech and the degree to which the
Constitution protects that right—namely, the level of scrutiny mandated for
different speech-related issues—in an effort to determine the scope of the
freedom of speech and the protections afforded by the First Amendment.42
One vein of First Amendment jurisprudence addresses the content of
speech and whether the restrictions or prohibitions at issue target speech on
the basis of its substance.43 Restrictions that do not target speech on such a
basis are deemed content-neutral.44 When considering the constitutionality
of content-neutral restrictions, the Supreme Court has held that courts must
apply the intermediate scrutiny test, which requires judges to consider the
degree of the restriction, “the substantiality of the government interests” that
the restriction serves, and “whether [the government’s] interests could be
served by means that would be less intrusive on activity protected by the
First Amendment.”45 Thus, with content-neutral restrictions, the government
bears the burden of “demonstrat[ing] the substantiality of its interests and the
absence of less restrictive alternatives,” meaning that the greater the
restriction’s interference with the freedom of speech, the greater the
government’s burden of justifying that restriction.46
In contrast, content-based restrictions, or those that expressly limit
communication based on the message conveyed, are presumptively invalid
under the Constitution.47 Rather than consider varying degrees of scrutiny
under which content-based restrictions fall, the Supreme Court has held that
courts are to presume that the First Amendment protects all speech on the
basis of content.48 However, for content deemed particularly worthy and
reflective of societal concern, the Court has carved out “areas of
41
See id. at 319 (arguing that much of First Amendment scholarship has focused on “justification
for a free speech principle and the level of . . . strength of scrutiny . . . that should apply in various
contexts within the First Amendment’s borders”).
42
Id.
43
See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV.
189, 189–90 (1983).
44
Id. at 189.
45
Id. at 190 (quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 70 (1981) (upholding the
modified intermediate scrutiny test)).
46
Id.
47
Id. at 190, 194.
48
Id. at 194.
31

nonprotection” that capture specific classes of speech that it finds do not

sufficiently advance the First Amendment or its underlying purposes.49
Under current jurisprudence,50 these areas of nonprotection include “express
incitement, false statements of fact, obscenity, commercial speech, fighting
words, and child pornography.”51
Of these areas of nonprotection, three warrant special attention in the
context of book bans: express incitement, false statements of fact, and
obscenity. First, under the express incitement carve-out, states may prohibit
advocating for force or the violation of laws but only “where such advocacy
is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.”52 Next, laws targeting “defamatory speech”—
false statements of fact that damage a person’s reputation—are permissible
where private plaintiffs can demonstrate negligent falsity,53 and where public
figures and officials can show proof of actual malice.54 Last, speech may be
prohibited if deemed obscene, which encompasses content that (a) “the
average person, applying contemporary community standards” would find
appealing to the “prurient interest,” (b) “depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state
law,” and (c) “taken as a whole, lacks serious literary, artistic, political, or
scientific value.”55 To apply these three areas of nonprotection to book bans,
it is crucial to first understand the Supreme Court’s jurisprudence on book
banning.
C. Book Banning and the First Amendment Applied—Board of Education

v. Pico
Notably, Supreme Court precedent contains no bright-line rule on the
constitutionality of book bans. In 1982—nearly forty years before the
contemporary book ban movement—the Court, in a plurality opinion,
confronted the scope of book bans under the First Amendment in the seminal
49
Id.
50
Notably, the categorization of these areas of nonprotection in First Amendment jurisprudence
“extends back to the ratification of the First Amendment” in 1791. Genevieve Lakier, The Invention of
Low-Value Speech, 128 HARV. L. REV. 2166, 2168 (2015).
51
Stone, supra note 43, at 194–95 (citations omitted).
52
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
53
Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).
54
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); Curtis Publ’g Co. v. Butts, 388 U.S.
130, 155 (1967). The distinction between public and private petitioners reflects the government’s greater
interest in protecting more vulnerable, private individuals. Gertz, 418 U.S. at 344.
55
Miller v. California, 413 U.S. 15, 24 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229, 230
(1972)).
32

case Board of Education v. Pico.56 In Pico, the Court addressed whether the
First Amendment limited local school boards in exercising their discretion
to remove high school and middle school library books.57
After obtaining a list of “objectionable” books from a politically
conservative educational conference, a New York school board of education
“unofficial[ly]” directed its principals and superintendents to remove the
listed books from their libraries for the board to review.58 Calling on its duty
and moral obligation to protect its children from “moral danger as surely as
from physical and medical dangers,” the board created a book review
committee composed of parents and school staff to review the books.59
In determining whether the books warranted prohibition, the committee
considered “‘educational suitability,’ ‘good taste,’ ‘relevance,’ and
‘appropriateness to age and grade level.’”60 The committee recommended
that five books be retained and two be removed, took no position on one,
“could not agree on two,” and suggested that one be available to students
who receive parental approval.61 Although the committee submitted its
recommendations to the board, the board nonetheless determined that only
one book be retained without restriction and that nine should be banned,62
giving no reason for its departure from the committee’s advice.63
Consequently, high school and middle school students within the board’s
district filed suit under 42 U.S.C. § 1983, asserting that the board’s actions
deprived them of their First Amendment rights.64
56
Notably, the Court in Pico did not address the constitutionality of book “challenges” under the
First Amendment. See Bd. of Educ. v. Pico, 457 U.S. 853, 855–56 (1982) (asserting that the question
presented regards First Amendment limitations upon the ability “to remove library books” from schools).
A book “challenge is an attempt to remove or restrict materials, based upon the objections of a person or
group,” while a ban is the successful removal of materials. Banned Book FAQ, AM. LIBR. ASS’N,
https://www.ala.org/advocacy/bbooks/banned-books-qa [https://perma.cc/NJH3-4KET]. Although a
detailed analysis of book challenges exceeds the scope of this Essay, I hope to explore this issue in a
future work.
57
Pico, 457 U.S. at 855–56.
58
Id. at 856–57.
59
Id. at 857 (quoting Pico v. Bd. of Educ., 474 F. Supp. 387, 390 (E.D.N.Y. 1979)).
60
Id.
61
Id. at 857–58.
62
The eleven books considered by the Board were “Slaughter House Five, by Kurt Vonnegut, Jr.;
The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of
Negro Writers, edited by Langston Hughes; Go Ask Alice, of anonymous authorship; Laughing Boy, by
Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain’t Nothin’ But A Sandwich, by Alice
Childress; . . . Soul On Ice, by Eldridge Cleaver[;]” A Reader for Writers, edited by Jerome Archer; and
The Fixer, by Bernard Malamud. Id. at 856–57 n.3. Of those, the Board decided that only two should not
be removed: Laughing Boy and Black Boy. Id. at 858 nn.10–11.
63
Pico, 457 U.S. at 858.
64
Id. at 858–59.
33

Before the Court addressed the specific facts before it in Pico, it first
discussed whether the First Amendment imposed any limitations on a school
board’s discretion to remove library books and, if so, how broadly those
limitations extended over that discretion.65 Although the Court recognized
local school boards’ broad discretion in managing school affairs, it
nonetheless reasoned that “the discretion of the States and local school
boards in matters of education must be exercised in a manner that comports
with the transcendent imperatives of the First Amendment.”66 In a plurality
opinion, the Court held that under this limited authority, the rights and
protections granted by the First Amendment extend to students, including
the right to send and receive ideas in the school setting.67
The Court next addressed “the extent to which the First Amendment
places limitations” on the discretion of school boards to remove books from
school libraries.68 While school boards may possess substantial discretion in
managing school affairs, the Court found that the First Amendment’s
prohibition against the suppression of ideas bars local school boards from
intentionally exercising their discretion “in a narrowly partisan or political
manner.”69 The Court provided an example of a “narrowly partisan or
political,” and therefore unconstitutional, exercise of a school board’s
discretion: “an all-white school board, motivated by racial animus,
decid[ing] to remove all books authored by [B]lacks or advocating racial
equality and integration.”70 Consequently, the Court held that “local school
boards may not remove books from school library shelves simply because
they dislike the ideas contained in those books and seek by their removal to
‘prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion.’”71
Upon determining that the First Amendment prohibits local school
boards from limiting the content of school library books on the basis of
disagreeable content, the Court addressed whether the factual record raised
a genuine issue of fact of whether the Board exceeded those limitations.72
Finding that the evidence did “not foreclose the possibility that [the Board’s]
decision to remove the books rested decisively upon disagreement with
65
See id. at 864–69 (explaining generally how the powers of a school board are limited by the
students’ First Amendment rights and why First Amendment rights as they pertain to school libraries
merit additional consideration).
66
Id. at 863–64.
67
Id. at 866–67.
68
Id. at 869.
69
Id. at 870–71.
70
Id.
71
Id. at 871–72 (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
72
Id. at 872.
34

constitutionally protected ideas in those books,” the Court held that a genuine
issue on the record existed that made the district court’s grant of summary
judgment to the Board improper.73
In sum, it is clear that book bans in the school setting must yield to the
commands of the First Amendment and require comprehensive review to
determine their constitutionality. Bans may not suppress ideas or authors
based on political, partisan, or opinion-based reasoning. Yet current book
bans aim to do just that.
II. BOOK BANS TARGETING CRITICAL RACE THEORY VIOLATE THE FIRST
AMENDMENT
Determining the constitutionality of current book bans against critical
race theory and BIPOC-related content requires answering the two distinct
questions posed by the Court in Board of Education v. Pico: (1) “does the
First Amendment impose any limitations” on the school boards’ or school
administrations’ discretion to remove library books from public schools?;
and, if so, (2) did those boards or administrations exceed the limits imposed
by the First Amendment?74
Pico answered the first question in the affirmative. The Court
determined that although school boards and administrations have substantial
discretion in managing school affairs, they must do so in a way “that
comports with the transcendent imperatives of the First Amendment.”75 The
Court further outlined examples of these First Amendment limitations,
including that school boards cannot remove books from libraries due to
disagreeable material or based on racial animus.76
Here, the second question under the Pico analysis is also answered
affirmatively because the bans are clearly motivated by racial animus and
disagreement with content.77 Some of the baseless arguments that support
73
Id. at 875.
74
See id. at 863. Although the Court’s decision in Pico specifically applied to school boards and
school administrations, its decision may be extended to the current anti-critical race theory book bans
implemented by bills and legislative proposals, as the affected groups in both instances are schools and
students.
75
Id. at 864; see also Barnette, 319 U.S. at 637 (“Boards of Education . . . have, of course, important,
delicate, and highly discretionary functions, but none that they may not perform within the limits of the
Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach
youth to discount important principles of our government as mere platitudes.”).
76
Pico, 457 U.S. at 870–72.
77
See id. at 871–72 (“If [the school board] intended by their removal decision to deny respondents
access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners’
decision, then petitioners have exercised their discretion in violation of the Constitution.” (footnote
omitted)).
35

critical race theory-related book bans and exceed the limits imposed by the
First Amendment include that the books promote “radical and racist
ideologies to students,”78 “opine[] [on] prejudice based on race,”79 and
“unfairly depict[] former President Donald Trump as a bully.”80 As noted by
the Court in Pico, “[t]his would be a very different case if the record
demonstrated that [the school boards] had employed established, regular, and
facially unbiased procedures for the review of controversial materials.”81
However, in the recent attacks against critical race theory, some
proponents of such book bans are employing rhetoric that, if accepted, would
render an analysis under Pico irrelevant. Namely, these proponents assert
that the First Amendment prohibition against content-based restrictions does
not extend to critical race theory because the subject falls outside First
Amendment protections and into three areas of nonprotection: incitement to
violence, defamatory speech, and obscenity. This Part explores these alleged
areas of nonprotection and establishes why each is a fallacy clouding an
unconstitutional pretext for banning critical race theory books that cannot
survive First Amendment scrutiny.
A. The “Critical Race Theory Incites Violence” Fallacy

The first fallacious argument fueling current book bans is that critical
race theory incites violence. Opponents of critical race theory allege that the
movement’s emphasis on activism promotes violence, sedition, and
lawlessness. Such an argument is exemplified by one Texas parent
describing Woke: A Young Poet’s Call to Justice, an anthology of social
justice-focused poetry by women of color, as a promotion of “terrorism.”82
For speech to fall under the incitement area of nonprotection under the
First Amendment, it must qualify as advocacy to incite or produce imminent
lawlessness that is “likely to incite or produce such action.”83 First,
imminence requires an immediate call for lawless action—”the mere abstract
teaching . . . of the moral propriety or even moral necessity for a resort to
force and violence, is not the same as preparing a group for violent action
and steeling it to such action.”84 Second, inciting speech must be directed at
78
Elizabeth A. Harris & Alexandra Alter, Book Ban Efforts Spread Across the U.S., N.Y. TIMES
(Feb. 8, 2022), https://www.nytimes.com/2022/01/30/books/book-ban-us-schools.html [https://perma.cc/
5BL5-WSH4].
79
Hixenbaugh, supra note 4.
80
Id.
81
Pico, 457 U.S. at 874.
82
Hixenbaugh, supra note 4.
83
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
84
Id. at 447–48 (quoting Noto v. United States, 367 U.S. 290, 297–98 (1961)).
36

a specific person or group.85 And lastly, speech must actually call for lawless
action.
Critical race theory books do not meet any of these prongs. First,
although critical race theorists urge people to engage in social and racial
activism, a general urge for activism is insufficient to qualify as immediacy.
Many critical race theory books fail this first prong because they do not
advocate for lawless action. However, books that arguably do promote such
action nonetheless fail this prong, as “advocacy of illegal action at some
indefinite future time” is insufficient for that speech to lose its shelter under
the First Amendment.86
Second, an author of a children’s critical race theory book found in a
school library may anticipate that schoolchildren will read their literary
work, but they are not directing their books at specific students or schools.87
Consequently, it also fails the second prong.
Last, critical race theory is not a call for lawless action; instead, its
activist dimension attempts to understand current social situations, how to
change them, and the paths to transforming society for the better.88 The
attempts by critical race theory opponents to market it as unlawful incitement
despite an obvious incongruence with existing Supreme Court precedent
reveals the pretextual motives underlying their efforts. Namely, it reveals the
fallacious common trope that calls for racial activism and equity are
synonymous with violence. More deeply embedded in this trope is the notion
that people of color are inherently violent,89 allowing those who resist racial
85
Hess v. Indiana, 414 U.S. 105, 108–09 (1973) (“Since the uncontroverted evidence showed that
Hess’ statement was not directed to any person or group of persons, it cannot be said that he was
advocating, in the normal sense, any action.”).
86
Id. at 108.
87
In Hess, the Court found that although an antiwar demonstrator remarked, “[w]e’ll take the fucking
street again,” in the middle of a crowd, his statement was not inciting because it “did not appear to be
addressed to any particular person or group, and that his tone, although loud, was no louder than that of
the other people in the area.” Id. at 106–08. Relatedly, in the case of critical race theory works, although
authors are, at times, writing to a student demographic, they are not directing their works to specific
students or student groups.
88
89
See, e.g., D. Marvin Jones, The “Big Black Man” and Other Stories: George Floyd, Stereotypes,
and the Shape of Fear, 75 U. MIA. L. REV. CAVEAT 97, 102 (2020) (discussing the historical and social
constructions of the “big black man” and “urban thug” stereotypes); Michelle S. Jacobs, The Violent
State: Black Women’s Invisible Struggle Against Police Violence, 24 WM. & MARY J. WOMEN & L. 39,
46 (2017) (discussing the role that persistent stereotypes against Black women, such as the trope that
“Black women are overly aggressive and accustomed to violence within their environment[s],” plays in
police killings, sexual assaults, and domestic violence perpetrated against Black women); Cynthia Kwei
Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 MINN. L.
REV. 367, 495–96 (1996) (noting that “[t]he average American might fear a Black man simply because
of the Black man’s race when it is not normatively justified to assume that another person is violent or
dangerous based on race”).
37

equity to reframe the oppressed as the aggressors and justify violent action
against them. This systemic issue is exemplified by protests in the summer
of 2020 that followed the murder of George Floyd, in which peaceful
protesters nationwide were met with the same police brutality against which
they were protesting.90
Critical race theory is not a philosophy of militant rebellion; instead, it
pursues mindfulness, unity, and solidarity among communities nationwide.
Critical race theory “necessarily[] [is] to think community building and
intimacy and to move individuals to intervene in oppressive systems . . . . [I]t
is to think about creating spaces for coping with inequality, and it is to think
about the connection required to sustainably resist violence against people
of color.”91 Consequently, because book ban proponents cannot establish that
critical race theory is incitement, this pretextual and fallacious justification
for banning books relating to critical race theory fails under the First
Amendment.
B. The “Critical Race Theory is Defamatory” Fallacy

The second pretextual fallacy used by current proponents of critical race
theory book bans is that critical race theory is defamatory to white people in
the United States. Those who wield this argument assert, among other things,
that critical race theory and other avenues towards racial justice disparage
white Americans and force feelings of racial guilt and distress upon young
white students. An infamous example of this rhetoric is Representative Matt
Krause’s justification for the 850 books he implicitly proposed to be
banned—the books were those that Krause believed “might make students
feel discomfort, guilt, anguish, or any other form of psychological distress
because of their race or sex.”92
To establish that speech is defamatory such that it falls outside the
protections provided by the First Amendment, a private petitioner must
demonstrate that the speech negligently communicates a false statement of
90
Zack Beauchamp, What the Police Really Believe, VOX (July 7, 2020, 8:10 AM),
https://www.vox.com/policy-and-politics/2020/7/7/21293259/police-racism-violence-ideology-george-
floyd [https://perma.cc/ML6X-XHNU].
91
Anjali Vats & Deidré A. Keller, Critical Race IP, 36 CARDOZO ARTS & ENT. L.J. 735, 784 (2018).
92
Chappell, supra note 3. Among these 850 books are 2020 Black Lives Matter Marches by Joyce
L. Markovics, What is White Privilege by Leigh Ann Erickson, #BlackLivesMatter: Protesting Racism
by Rachel L. Thomas, The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle
Alexander, This Book Is Anti-Racist: 20 Lessons on How to Wake up, Take Action, and Do the Work
by Tiffany Jewell, Multicultural Education: Issues and Perspectives by James A. Banks, and How to
Be An Antiracist by Ibram X. Kendi. Letter from Matt Krause, Tex. State Rep., to
Lily Laux, Deputy Comm’r Sch. Programs, Tex. Educ. Agency add. (Oct. 25, 2021),
https://static.texastribune.org/media/files/94fee7ff93eff9609f141433e41f8ae1/krausebooklist.pdf
[https://perma.cc/Y6VY-XMEN].
38

fact damaging to their reputation.93 However, such a task is insurmountable

for proponents of this book ban fallacy, as there is no negligent falsity
underlying critical race theory for them to reveal. Instead, critical race theory
confronts the realities of racism, both past and present, in the United States.
These realities are reflected by the basic tenants of critical race theory as
defined by Jean Stefancic and critical race theory pioneer Richard Delgado:
(1) racism is an ordinary social science that can be studied, analyzed, and
learned from; (2) race is a social construct; and (3) current and historical
racial hierarchies serve the white majority and discredit, neglect, and oppress
racial minorities.94
Critical race theory is not an indictment on whiteness; instead, it is a
methodology that inspects how social structures benefit the white majority
over people of color and seeks to establish racial equity.95 In other words, it
aims to validate and articulate the experiences of people of color in the
United States. To do so, however, requires “aggressive, color-conscious
efforts”96 that necessitate race-centric discourse.
The misclassification of critical race theory as defamatory speech by
book ban proponents reveals the pretextual motives behind their actions.
Through assertions that critical race theory is an attack on whiteness that
necessitates the removal of race-related discourse in schools, opponents of
critical race theory effectively advocate for a “colorblind” engagement with
race-related issues. Although proponents of a colorblind discourse assert that
it furthers racial equality, the colorblind approach neglects racial equity,
thereby erasing the experiences, perspectives, and voices of people of
93
See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (finding that a “private defamation
plaintiff who establishes liability under a less demanding standard than” the standard for public figure
“may recover only such damages as are sufficient to compensate him for actual injury”). Because the
failure to meet reputational damage on any one person would automatically bar a public figure from
establishing actual malice, this discussion only addresses defamation as applied to private practitioners.
94
See DELGADO & STEFANCIC, supra note 21, at 8–9. The concept of “biological race,” or the idea
that biological distinctions divide humans into distinct groups, originates from the colonialist endeavors
of the seventeenth century and “[t]he desire to enslave people, take their land, [and] dominate them.”
Susan Kelly, Myth of Race Still Embedded in Scientific Research, Scholar Says, CORNELL CHRON.
(Nov. 20, 2017), https://news.cornell.edu/stories/2017/11/myth-race-still-embedded-scientific-research-
scholar-says [https://perma.cc/E2CU-BHJA]. Scientists at that time used “race” as a means to justify
“why it was moral” and “naturally imperative[] for Europeans to inflict these harms” on members of
colonized populations. Id. In modern days, scientists and white nationalists point to biological racial
differences as the cause of racial inequality—despite the fact that the notion of biological race “has been
definitively proven false.” Id. This erroneous assertion relies on outdated and disproven research, rather
than the social science demonstrating that racial inequality is due to social differences, such as “higher
rates of incarceration, lower educational attainment, lower income, [and] lower wealth.” Id.
95
See Kelly, supra note 94.
96
39

color—particularly those of Black people in the United States.97 The

colorblind consequence of classifying critical race theory as defamatory
speech would “stand[] in the way of taking account of difference in order to
help people in need.”98 Thus, the “critical race theory is defamatory speech”
fallacy is pretextual and meritless, and it cannot withstand scrutiny under the
First Amendment.
C. The “Critical Race Theory is Obscene” Fallacy

The last pretextual fallacy used to support current book bans against
critical race theory is that critical race theory is or closely connects to
obscene content. As mentioned in Part II, obscenity—or, more specifically,
sexual content and obscene language—has historically been the most
common justification for book bans.99 Current book ban efforts are no
exception; they cite obscenity as one of several justifications to ban critical
race theory books from school libraries.100 This depiction of critical race
theory as obscene ranges from parental allegations that books that advocate
for the abolition of racism in schools are patently offensive because they
“promote[] discrimination”101 to state legislators seeking to criminalize the
distribution of obscene or harmful materials, i.e., critical race theory books,
to minors in schools.102
Removal of critical race theory-related books from school libraries
under the basis of obscenity requires that book ban proponents establish that
critical race theory either (1) appeals to society’s prurient interests, (2) relates
to patently offensive sexual conduct under state law, or (3) lacks serious
national value, including literary, artistic, political, and scientific value.103
The first and second prongs are wholly unrelated to critical race theory, as
critical race theory neither appeals to prurient interests nor relates to patently
sexual conduct. Although the movement may intersect with other social
97
See, e.g., Neil Gotanda, A Critique of “Our Constitution is Color-Blind”, 44 STAN. L. REV. 1, 2
(1991) (discussing how “the United States Supreme Court’s use of color-blind constitutionalism—a
collection of legal themes functioning as a racial ideology—fosters white racial domination”).
98
99
See Beauchamp, supra note 8.
100
Strauss, supra note 2; see generally Hixenbaugh, supra note 4 (listing examples of book
challenges on the basis of obscenity).
101
See Hixenbaugh, supra note 4 (listing parents’ complaints of various books dealing with topics
such as race, gender, racism, and sexuality).
102
See Strauss, supra note 2.
103
Miller v. California, 413 U.S. 15, 24 (1973).
40

justice movements addressing sexuality and sex positivity, critical race

theory at its core addresses racial justice.104
Although opponents of critical race theory argue that critical race theory
falls under the third prong of obscenity so long as an entire community
determines that the movement lacks serious social value, this argument fails
under the First Amendment. Despite attempts to make “obscenity” a broad,
catchall phrase that encompasses many subjects,105 the increased access to
content and information during the Information Age has rendered the scope
of obscenity “quite specific and limited.”106 Specifically, three notions
remain under the modern interpretation and application of the “lacks any
redeeming social value” prong of obscenity: (1) there is a “strong
presumption in favor of protecting unconsenting adults and children when
they are in public”; (2) “the government can constitutionally prohibit the sale
or exhibition to children of material that is obscene for minors, but only if it
can do so without significantly interfering with the rights of adults”; and (3)
“the government can constitutionally prohibit the production, distribution,
and possession of child pornography,” defined as “sexual images and videos
made with real children.”107 Critical race theory books fall outside each of
these notions.
As the Court held in Pico, the First Amendment does not tolerate the
removal of books from school libraries simply because people “dislike the
ideas contained in those books” or due to motivations of racial animus.108 The
First Amendment cannot tolerate the use of obscenity as a blunt instrument
to force any disagreeable topic outside of the confines of the Constitution,
nor should it be used as a back door argument that facilitates a racist
application of the First Amendment. Therefore, the obscenity-related fallacy
used against critical race theory cannot survive scrutiny under the First
Amendment.
104
See supra notes 94, 96, 100–101 and accompanying text. Although the constitutionality of book
bans against gender-, gender identity-, and sexuality-related books are an important subsection of the
general book ban discussion, this topic is beyond the scope of this Essay. This Essay instead addresses
the erroneous argument that critical race theory itself appeals to the prurient interests.
105
See supra note 101 and accompanying text.
106
Geoffrey R. Stone, Sexual Expression and Free Speech: How Our Values Have (D)evolved,
A.B.A.,https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-
ongoing-challenge-to-define-free-speech/sexual-expression-and-free-speech/[https://perma.cc/9ZNF-
J65F].
107
Id. (discussing how the government’s power to restrict material is now far more limited).
108
Bd. of Educ. v. Pico, 457 U.S. 853, 854, 872 (1982).
41

III. THE FIRST AMENDMENT AND A MORE DIVERSE JUDICIARY

Although the First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech,”109 the First Amendment is often
interpreted such that its constitutional protections neither serve nor protect
racial minorities. The Constitution has historically been interpreted to serve
the majority population.110 This approach, in theory, is logical and unfeeling
—because it is impossible to serve the needs of all simultaneously, it relies
on notions of fairness and general applicability. This majority-centric
approach further purports to be colorblind—it serves the population based
on general need rather than specific qualities, traits, or attributes.111
However, when applied, this approach demonstrates racial bias and
underinclusivity. Because the majority population has historically been a
white majority, majority-centric interpretations of the Constitution are both
overinclusive and underinclusive: they widen the gap of racial equity by
continuing to serve white majority interests while neglecting the needs of
racial minorities.112
An apt example of a Supreme Court decision that demonstrates the
racial underinclusivity of the First Amendment is Virginia v. Black, 538 U.S.
343 (2003). In Black, the Court addressed the constitutionality of a Virginia
cross-burning statute, VA. CODE ANN. § 18.2-423 (1996), that criminalized
a person or persons’ cross burning “with the intent of intimidating any person
or group of persons” and allowed the action of cross burning itself to be
“prima facie evidence of an intent to intimidate a person or group of
persons.”113 The Court discussed the history of cross burning at length, the
Ku Klux Klan (KKK), and racism in the United States, noting that “when a
cross burning is used to intimidate, few if any messages are more powerful,”
as many of the recipients of such a message “fear for their lives.”114
Nonetheless, in a 6–2 majority decision—and from a majority
composed entirely of white justices—the Court struck down the prima facie
provision of the statute, holding that “[a]s the history of cross burning
indicates, a burning cross is not always intended to intimidate.”115 In support
109
U.S. CONST. amend. I.
110
Gotanda, supra note 97 (discussing how “the United States Supreme Court’s use of color-blind
constitutionalism—a collection of legal themes functioning as a racial ideology—fosters white racial
domination”).
111
See id. at 7 (“Color-blind constitutional analysis ignores this ordinary lived experience of race as
a highly charged concept with complex historical and social implications.”).
112
See id. at 2–3 (“A color-blind interpretation of the Constitution legitimates, and thereby
maintains, the social, economic, and political advantages that whites hold over other Americans.”).
113
Virginia v. Black, 538 U.S. 343, 348 (2003).
114
Id. at 357.
115
Id. at 365.
42

of its decision, the Court reasoned that because cross burning at times “is a
statement of ideology, a symbol of group solidarity,” and “a ritual used at
Klan gatherings” that represents the Klan itself, “[b]urning a cross at a
political rally would almost certainly be protected expression.”116
Founding his remarks on the notion that “certain things acquire
meaning well beyond what outsiders can comprehend” in every culture,
Justice Clarence Thomas—the sole Black justice on the Court—dissented
from the majority opinion.117 Noting that cross burning in the United States
“has almost invariably meant lawlessness and understandably instills in its
victims well-grounded fear of physical violence,” Justice Thomas rejected
the majority’s assertion that cross burning could be performed without the
intent to intimidate.118
He opined that the majority’s idealistic distinction between cross
burning with and without the intent to intimidate overlooked “not only the
words of the statute but also reality.”119 He detailed the pervasive presence
of the KKK in Virginia, the reality that most victims of cross burnings in the
state were Black families, and the legality of racial segregation at the time
the cross-burning statute was enacted.120 He cited the well-documented
“association between acts of intimidating cross burning and violence,”
adding that “[f]or those not easily frightened, cross burning has been
followed by more extreme measures, such as beatings and murder.”121 And
he identified the pretextual rationale underlying the arguments against the
statute, emphasizing that “those who hate cannot terrorize and intimidate to
make their point.”122
The significance of Justice Thomas’s remarks as the sole Black
Supreme Court Justice is substantial. As Justice Thomas remarked to begin
his dissent, there are “certain things [that] acquire meaning well beyond what
outsiders can comprehend.”123 In the case of Virginia v. Black, six white
Supreme Court justices could not comprehend the inherent racism of and
threat behind cross burning. Their experiences both informed and limited
their understanding of cross burning. Because they had not directly been
targets of systemic racism, they overlooked the reality of the statute and of
the experience of Black, Brown, and other racial minorities in the United
116
Id. at 365–66 (White, J., concurring) (quoting R. A. V. v. St. Paul, 505 U.S. 377, 402 n.4 (1992)).
117
Id. at 388 (Thomas, J., dissenting).
118
Id. at 391.
119
Id. at 388.
120
See id. at 391–94.
121
Id. at 389 (citing JUAN WILLIAMS, EYES ON THE PRIZE: AMERICA’S CIVIL RIGHTS YEARS, 1954–
1965 39 (1987)).
122
Id. at 394.
123
Id. at 388.
43

States. And, as the sole Black justice on the Court, Justice Thomas was
forced to articulate and educate his white colleagues of these realities on his
own.
Relatedly, the humanity of and, therefore, the fallibility of the judiciary
further contributes to the over and underinclusivity of the application of the
First Amendment. Although the Constitution theoretically can be applied in
a racially equitable manner, the judiciary interpreting and applying its
principles are human. As a part of that humanity, they carry with them
implicit biases that are informed by their individual life experiences.124
Where there is a broad cross section of backgrounds and life experiences in
the judiciary, implicit biases are diversified, making it more likely that those
serving as judges hold one another accountable for recognizing and
confronting their biases. However, when the judiciary is limited to a narrow
cross section of the population, the probability of overlapping biases
increases, creating the risk of a judicial echo chamber in which biases are
unrecognized, unacknowledged, and reinforced. The result of this
phenomenon is an inequitable application of the Constitution that either
erroneously applies First Amendment protection as in Black or restricts the
First Amendment and the freedom of speech it affords as currently at risk in
the wake of state book bans targeting critical race theory.
To prevent this echo chamber of judicial bias, the Constitution—and
more specifically, the First Amendment—will continue to provide unequal
protection without a judiciary diverse in thought, experience, and color.
Because every culture has “certain things [that] acquire meaning well beyond
what outsiders can comprehend,”125 the judiciary must come from a broad
cross section of society to ensure the equitable enforcement of inclusivity. A
diverse judiciary would thereby mitigate over and underinclusive
interpretations of the freedom of speech.
This notion is exemplified when applied to the pretextual fallacies
currently targeting critical race theory. In the context of determining whether
critical race theory incites violence, a diverse judiciary would more likely
recognize that critical race theory is a community-centric movement and not
a lawless approach to social reform. It would more likely understand that
critical race theory’s activist dimension focuses on not violent sedition but
proactive reform. In analyzing whether critical race theory is defamatory to
white U.S. citizens, diversity in the judiciary would avoid the temptation to
124
In the legal context, “systemic implicit bias” is “the way automatic racial bias may have become
unwittingly infused with, and even cognitively inseparable from, supposedly race-neutral legal
theories . . . and jurisprudential approaches to well-considered constitutional doctrines.” Justin D.
Levinson & Robert J. Smith, Systemic Implicit Bias, 126 YALE L.J. F. 406, 408 (2017).
125
Black, 538 U.S. at 388 (Thomas, J., dissenting).
44

promote a colorblind Constitution and the consequent erasure of color that

follows. The judiciary would recognize the danger in silencing race-related
discourse and the benefits of allowing schoolchildren to learn from the
experiences of those different from their own, both past and present. And for
arguments asserting that critical race theory is obscene, a diverse judiciary
would recognize the national value of critical race theory while
simultaneously rejecting any pretextual attempts to disguise disagreement
and racial animus with the fallacious cloak of obscenity.
CONCLUSION
As unprecedented demands for book bans have spread across the United
States, so too has the effort to remove critical race theory from public school
libraries. In response to the increased societal awareness of the continued
existence of systemic racism in the United States, the attack against critical
race theory in current book ban proposals seeks to calm public discomfort
by erasing race-related discourse and the experiences of BIPOC altogether.
Although the attacks against critical race theory cannot survive under First
Amendment scrutiny, this recent phenomenon highlights the necessity of
diversifying the judiciary. A judiciary diverse in thought, perspective, and
color may more readily apply the First Amendment with racial equity in
mind, extending First Amendment protections to often-neglected minority
groups.
45

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Copyright 2022 by Marisa Shearer Vol.

BANNING BOOKS OR BANNING BIPOC?

ABSTRACT—Following the murder of George Floyd in May 2020, social

AUTHOR—Associate, Wheeler Trigg O’Donnell LLP. J.D., University of

Electronic copy available at: https://ssrn.com/abstract=4188196

Electronic copy available at: https://ssrn.com/abstract=4188196

I. BACKGROUND: BOOK BANNING AND THE FIRST AMENDMENT

Electronic copy available at: https://ssrn.com/abstract=4188196

A. Book Banning and Contemporary Attempts to Ban Books in the United

Electronic copy available at: https://ssrn.com/abstract=4188196

Consequently, what is considered inappropriate, offensive, or

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liberal order, including equality theory, legal reasoning, Enlightenment

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reasonably should know, is obscene or harmful to minors” may face fines

B. The First Amendment and the Freedom of Speech

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Amendment scholarship wrestles with the definition of each concept and

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nonprotection” that capture specific classes of speech that it finds do not

C. Book Banning and the First Amendment Applied—Board of Education

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A. The “Critical Race Theory Incites Violence” Fallacy

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B. The “Critical Race Theory is Defamatory” Fallacy

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fact damaging to their reputation.93 However, such a task is insurmountable

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color—particularly those of Black people in the United States.97 The

C. The “Critical Race Theory is Obscene” Fallacy

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justice movements addressing sexuality and sex positivity, critical race

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III. THE FIRST AMENDMENT AND A MORE DIVERSE JUDICIARY

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promote a colorblind Constitution and the consequent erasure of color that

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